Monday, April 30, 2018

Artnet's Julia Halperin has more on the Baltimore Museum's decision to sell works by Warhol, Rauschenberg, "and other 20th-century titans" in order to "fund future acquisitions of cutting-edge contemporary art, specifically by women and artists of color."

I haven't seen any criticism of the move at all -- and indeed Halperin's piece fails to cite any actual opposition.

It's okay to deaccession when you have a good reason to do so.
In this case the good reason is to diversify the collection. But there can be other good reasons; buying more art is not the only conceivable good reason across all cases.

So can we please stop talking about an imaginary "public trust" that doesn't exist? Clearly the works Baltimore is selling are not now and never have been held in the public trust. They're just owned by the museum, and it's free to do with them whatever it thinks best.

And can we please stop pretending to (selectively) worry about hypothetical future donors who will be scared off from donating to museums if they understand their works can be sold?

All that matters is whether there is a good reason for the sale, whether, on balance, given all the relevant circumstances, the benefits outweigh the costs. No more "ethics" lessons, no more moral outrage from the Deaccession Police.

Thursday, April 26, 2018

One of my favorite bits of nonsense in the whole web of nonsense that makes up the discussion around "the public trust" is that when museums (which are, for the most part, private actors who happen to get some tax benefits) go to sell some work, we hear endlessly about how problematic that is because the work is (in some unspecified way) held in the public trust ... but when work is sold by, you know, the public, somehow the public trust doesn't enter into the discussion.

Latest case in point: the Illinois Metropolitan Pier and Exposition Authority is selling a Kerry James Marshall painting that it purchased for $25,000 in 1997, "with public money raised through project-expansion bonds," at Sotheby's next month for an estimated $8-12 million. And of course, not a peep from the Deaccession Police.

So to review: works held by an Illinois municipal authority, purchased with public money: not held in the public trust. Works held by, say, the Art Institute of Chicago, purchased with money they raised from donors, so extremely held in the public trust.

Now, if there were an Association of Metropolitan Pier and Exposition Authority Directors and they happened to have adopted a "Code of Ethics" on the subject, then we can be sure the Deaccession Police (aka Random Code of Ethics Enforcers) would be all over it. But without that Code of Ethics, this work, though held by the public, is obviously not held in the public trust.

Monday, April 23, 2018

"What were the terms of the contract you signed, you rich knucklehead? And: Is the complaint a work of art? And: Why can I never remember what an ouroboros is and have to look it up every damned time?"

Saturday, April 21, 2018

The Fearless Girl sculpture (background here) is moving, but there are conflicting reports about whether the Charging Bull is going with it. The New York Law Journal says "the Fearless Girl is getting out of the path of the Charging Bull, which may also allow the New York City government and the owner of the Fearless Girl to sidestep a lawsuit." But the New York Times says "if the city has its way, the bull will eventually go with her": "A spokesman for [Mayor] de Blasio said that it was important to the mayor ... to keep the two works together."

UPDATE: Sergio Muñoz Sarmiento: "NYC should move both the Fearless Girl and the Bull to Albany. After all, what better place for bull?"

The Boston Globe's Jeff Jacoby (seen earlier here) cheers the outcome of the Berkshire Museum dispute, saying "it looks as though the Berkshire will weather the storm and remain a lively presence in Pittsfield for years to come" and adding: "Yet the art snobs seem, if anything, even more outraged."

Deaccession Police Captain Christopher Knight (who had been singled out in Jacoby's earlier column on the subject) responds on Twitter: "Calling art lovers 'snobs' is a familiar redoubt for the ignorant."

To which Jacoby responds: "Your advice for the Berkshire Museum, Christopher Knight, was that it close down & be cannibalized by other museums. The pain that would cause Pittsfield you shrugged off: 'If its community cannot sustain the museum, not much can be done.' I'd say 'snobs' is putting it mildly."

Here's a link to the Knight column in question (which I discussed earlier here), which includes the following:

"Here's an idea: Don't sell the art. Do close the museum.

"Start behaving like the charitable institution you are supposed to be. Spend the next several years responsibly overseeing the dispersal of the collection.

"Donate the art to other museums that would benefit most from having it. ... Because the state gives the Berkshire Museum a subsidy through tax breaks, in addition to its federal one, Massachusetts has a priority stake; so its many other museums should get the first (but not the only) consideration for gifts.

"Shields [the museum's director] has said that, without the sale, the institution can't survive beyond the next eight years. That affords plenty of time to unwind the Berkshire Museum, an honorable task at least as hard as conceiving a last-ditch overhaul with no guarantee of success.

"Drastic, I know. And a sad loss for Pittsfield. It would be a psychic blow to a city that still struggles economically.

"But the hard truth is that if its community cannot sustain the museum, not much can be done."

A sale of seven works -- by Warhol, Rauschenberg, Kline, Noland, and Olitski -- to who knows where: totally fine, no big deal, just shut up.

A sale of one work by a museum in Pittsfield, Massachusetts to another museum in Los Angeles, California: a tragedy. Months and months of protests and non-stop press coverage and lawsuits and anguish and tears.

The Ninth Circuit plans to issue its ruling, despite the parties' settlement. Story here. Background here.

At PrawfsBlawg, Howard Wasserman says "now we will get to see if Naruto loses on the merits (as he should, because the scope of a statute is a merits issue) or on standing grounds (as the argument sounded the court was heading)."

Saturday, April 14, 2018

Those who are deeply, deeply concerned that works, once held in the public trust, remain held in the public trust must have been happy to have it confirmed this week that the Lucas Museum was the buyer of Rockwell's "Shuffleton's Barbershop" from the Berkshire Museum.

I kid, of course. They're not happy at all. But imagine this one sale was all the museum needed to solve its serious financial trouble. (Not too big a stretch, actually: the purchase price was not disclosed, but Sotheby's had previously estimated it at $20-30 million.) It's hard to see how anybody could object to that. The museum solves its problem, and the work stays in the public domain. Sure, maybe the people of the Berkshires "lose" one of "their" many Rockwells, but that's offset by the fact that the (many more) people of Los Angeles gain a Rockwell. It's a win-win, isn't it?

But you just know that, if that were the whole transaction, the Deaccession Police would be just as outraged as they always are. It would be unethical. It would be repulsive. It would be Stalinesque. The whole usual drill.

Their utter inability to distinguish between cases -- to see any relevant ethical difference between a sale by a struggling museum to another, better funded museum, on the one hand, and a sale by a flush museum to a private collector to raise funds for day-to-day operating expenses, for example -- suggests that there is something deeply wrong with their approach. But they're oblivious to it, or at least pretend to be.

Good piece (though a couple weeks old) from the Washington Post on the case I mentioned here, including this from NYU's Jeanne Fromer:

"There has been this shift in accepting street art as part of the artistic canon. … As street art has become more and more acceptable, a lot of people are inclined to look past the trespassing aspect in a way they might not have decades ago."

"For example, notice should be provided to the artist of the landlord’s intention to remove the art, ample time should be provided for its removal (no less than 90 days), and other accommodations should be made to facilitate the art’s preservation and removal. Though an action for injunction may still ensue if the work cannot be safely removed without destruction, the hope is that any damage award would, at the very least, be mitigated in light of the owner’s good faith efforts. In 5Pointz, maximum statutory damages were awarded because of the landlord’s aggressive actions, which were held to be an insult to the artists."

Julia Halperin has the story here. Background here. Apparently one issue in the case is whether the sculpture -- Log Cabin (1990) -- can be copyrighted at all: "The defendants say that the artistry of the work lies in the idea behind it, not the physical expression .... In fact, they contend, the actual construction of the work is so generic that Log Cabin is impossible to copyright."

Flavin Judd tweets: "Cady Noland is right, the art dealers are wrong. They are just arguing their 'philosophical' position for profit, not out of any kind of actual conviction."

Postmasters' Magda Sawon agrees: "This is a no brainer. Team Cady Noland."

UPDATE: Brian Frye "respectfully disagree[s] in part. The dealers may be 'wrong' in some 'ethical' sense, but their legal argument is pretty solid. The Copyright Office doesn't see any 'original' elements protectable by copyright & neither do I. No VARA rights without copyrightable subject matter."

Artnet's Eileen Kinsella says "that exhalation you just heard is the sound of art authentication boards and catalogue raisonné authors across the country breathing a sigh of relief." Yale's Will Goetzmann tweets: "Landmark decision granting art historians freedom of speech!!!!! Finally some rationality."

While it's certainly good news for artist foundations, keep in mind it's one decision by one lower court (which will probably be appealed). The best part of the decision for those folks is that the court enforced the legal fees provision in the plaintiff's agreement with the authentication committee: the next person contemplating bringing such a suit will have to think about not just the possibility of losing, but also of having to pay the foundation's legal fees if they do. (But given the existence of these clauses in the first place, that's probably something they should have been thinking about all along.)